The Criminal Procedure Code (Amendment) Bill, 2026

Background

The Criminal Procedure Code (Amendment) Bill, 2026 seeks to amend the Criminal Procedure Code (Cap. 75) to align its provisions with the Constitution of Kenya, 2010. Specifically, it targets conformity with rights such as equal treatment and freedom from discrimination (Article 27), dignity (Article 28), privacy (Article 31), and fair hearing (Article 50). The Bill also updates court terminology to reflect the current judicial structure under the Magistrates' Courts Act (Cap. 10) and aligns mental health-related trials with the Mental Health Act (Cap. 248).

Key Amendments

• Court Terminology and Jurisdiction: Replaces archaic references to "subordinate court" or "subordinate court of the first class" with "magistrate's court". Similarly, geographical terms "province or district" are replaced with "county or sub-county".
• Abolition of Corporal Punishment: Amends Section 15 of Cap. 75 to delete "corporal punishment" as a mode of punishment, ensuring compliance with Article 29(e) of the Constitution.
• Discontinuance of Cases (Nolle Prosequi): Amends Section 82 to restrict the Director of Public Prosecutions from entering a nolle prosequi to stop case proceedings without the explicit permission of the court.
• Trial Fitness and Mental Illness: Repeals Section 162 and Section 166. It introduces new procedures for determining if an accused person is unfit to stand trial due to mental illness, replacing indefinite detention "at the President's pleasure" with treatment-oriented commitments.
• Court Language: Amends Section 198 to declare that the official languages of all courts shall be Kiswahili, English, and Kenya Sign Language.
• Criminal Procedure Rules Committee: Inserts a new Section 395 to establish a Rules Committee chaired by the Chief Justice (or a nominated Court of Appeal judge) to formulate and review rules of criminal court procedures.

New Obligations

• Searching of Intersex Persons: Inserts Section 27A, establishing that where it is necessary to search an intersex person, the search must be conducted by a person of the sex preferred by the intersex individual, where reasonably practicable.
• Disposal of Forfeited Goods: Inserts Section 389B, mandating that court-forfeited goods and property must be disposed of by the Chief Registrar of the Judiciary in accordance with the Public Procurement and Asset Disposal Act, 2015.
• Release of Exhibits: Inserts Section 389C, requiring that unless forfeited, all court exhibits must remain the property of their proprietors and be released to them after judgment or at any other stage of the trial.

Penalties

• Unauthorized Publication of Mental Fitness Reports: Section 162(9) prohibits publishing reports of court proceedings or decisions regarding an accused person's mental soundness before the trial is concluded or discontinued. Section 162(10) prescribes that a person who contravenes this is liable upon conviction to a fine not exceeding KSh 100,000, imprisonment for a term not exceeding 12 months, or both.